Gujarat High Court
Pratik Jagdishbhai Thakkar & 5 vs State Of Gujarat & on 5 May, 2017
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/SCR.A/9248/2016 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 9248 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed YES
to see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy of NO
the judgment ?
4 Whether this case involves a substantial question of NO
law as to the interpretation of the Constitution of
India or any order made thereunder ?
5 Circulate the judgment amongst subordinate
judiciary
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PRATIK JAGDISHBHAI THAKKAR & 5....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR Y.S. LAKHANI, SENIOR ADVOCATE WITH MR. ANAND V THAKKAR,
ADVOCATE for the Applicant(s) No. 1 - 6
MR. JAY M THAKKAR, ADVOCATE for the Applicant(s) No. 1 - 6
MR K S CHANDRANI, ADVOCATE for the Respondent(s) No. 2
MS NISAH THAKORE, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 05/05/2017
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1. By this application under Article227 of the Constitution of India, the applicant - original accused nos.1 to 6 have prayed for the following reliefs: 9(A) to admit and allow this Special Criminal Application;
(B) to quash and set aside the FIR being I C.R. No.79/2011 registered with Anand Nagar Police Station, Ahmedabad (Annexure'A') and Charge Sheet No.64/2012 (Annexure'B') qua section 304 and 395 of Indian Penal Code and thereby be pleased to allow the application below Exh.6 filed in Sessions Case No.153/2016 pending before 6th Additional District Judge, Ahmedabad (Rural) by quashing and setting aside the order dated 20.10.2016 passed by 6th Additional District Judge, Ahmedabad (Rural) in an application below Exh.6 in Sessions Case No.153/2016 (Annexure'C') in the interest of justice;
(C) to stay the further proceedings of Sessions Case No.153/2016 pending before learned 6th Additional District Judge, Ahmedabad (Rural), Ahmedabad in the interest of justice;
(D) to grant such other and further relief/s as may deemed fit, just and proper in the facts and circumstances of the case, in the interest of justice;
2. The case of the prosecution may be summarized as under: 2.1 The respondent no.2 herein lodged an FIR on 30/09/2011 for an incident which occurred on 29/09/2011 at about 11:00 O'clock in the night. The first informant while at home on 28/09/2011 received an anonymous phone call at about 11:00 O'clock in the night. He received a call from the mobile No.8460497647. The person who called him up inquired as to why the first informant was harassing a girl by name Sweety. The first informant tried to inquire with the person, who had called him up about his identity and the reply was "taro baap bolu chhu". The first informant thereafter disconnected the phone. Soon thereafter the first informant again received two to three phone calls from the very Page 2 of 47 HC-NIC Page 2 of 47 Created On Sat May 06 01:27:56 IST 2017 R/SCR.A/9248/2016 CAV JUDGMENT same mobile number, but he did not answer those calls. The first informant thereafter called up his friend by name Kapil Pravinbhai Thakkar, residing at Shikhar Tower, Near Shyamal Cross Roads, Ahmedabad. Kapil Thakkar informed the first informant that he was sitting in a canteen situated at the Andhjan Mandal Cross Roads. The first informant thereafter reached the place where Kapil Thakkar was sitting and informed him about the phone calls received by him. Kapil Thakkar is said to have called up on the same number and inquired about the identity of the person. The person informed Kapil that he was standing near the Vastrapur Sardar Center and asked Kapil to reach that place. As that person was talking in a foul language, the first informant and Kapil also started talking in the same manner.
2.2 On 29/09/2011 at 10:30 in the night, the first informant visited the house of his friend Kapil. All other friends of the first informant were present at the house of Kapil. At that point of time, one of the friends of the first informant by name Darshan gave a call on the same number, however, the person who was called up did not reveal his identity. He in turn started hurling abuses. The first informant and his friends were asked to come to the Kapadiya School, Gurukul Road and accordingly, all reached at the said place, but none was present at that particular place. At about 11:30 in the night, the first informant received a phone call from one Krunal Bharatbhai Thakkar, a resident of the same apartment informing the first informant that he should lock the main door of his flat as about 15 20 persons were marching towards the apartment riding on 7 to 8 motorcycles, armed with weapons like hockey, sticks, etc. The first informant immediately locked the door from inside. Two of his friends named Bhumit and Rahul hid themselves in one room opposite to the toilet. One Anish hid himself in the bathroom and Kapil, the deceased went out on the balcony and locked the door Page 3 of 47 HC-NIC Page 3 of 47 Created On Sat May 06 01:27:56 IST 2017 R/SCR.A/9248/2016 CAV JUDGMENT from outside. At that point of time, few unknown persons started kicking the main door of the flat and were shouting "where is every one, no one will be spared today". All those persons broke open the main door of the flat and stormed inside. Those persons started administering threats. As the first informant and his friends had hid themselves in the different rooms, the persons who had come with weapons left the place. At that point of time, Krunal called up Rahul and informed that Kapil had jumped from the balcony and had fallen down. Kapil was thereafter shifted to the hospital in 108 ambulance. It is alleged that the accused persons who had come at the flat of the first informant while retreiving took away the mobile phones, which were lying in the drawing room.
2.3 Kapil ultimately succumbed to the injuries sustained by him on account of a fall from the balcony of the fourth floor of the building. In such circumstances, the FIR came to be registered at the concerned Police Station for the offence punishable under Sections304, 395, 452, 342, 506(2), 294(b), 427 and 201 of the IPC and Section135 of the Bombay Police Act.
2.4 At the end of the investigation, the police filed chargesheet for the offence enumerated as above and the filing of the chargesheet culminated in the Sessions Case No.153 of 2016.
2.5 It appears that the applicants herein preferred an application Exh.6 for discharge and the said application came to be rejected by the learned sixth Additional District & Sessions Judge, Ahmedabad Rural vide order dated 20/10/2016. It may not be out of place to state that the discharge application was confined only to the offences punishable under sections304 and 395 of the IPC.
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3. Being dissatisfied with the order passed by the trial Court, the applicants have come up with this application.
4. Mr. Lakhani, the learned senior counsel appearing for the applicants vehemently submitted that even if the entire case of the prosecution is believed or accepted to be true, none of the ingredients to constitute the offence punishable under Section304 of the IPC or Section395 of the IPC are spelt out. It is submitted that the applicants herein did not even touch any of the witnesses including the deceased. They might have created fear in the minds of all and more particularly, the deceased who tried to make good his escape by jumping from the balcony of the apartment to the other apartment situated bank opposite. However, in the process, fell down and sustained serious injuries. According to Mr. Lakhani, the act would not fall within the ambit of culpable homicide not amounting to murder. Mr. Lakhani submits that none of the ingredients to constitute the offence of dacoity are spelt out. The chargesheet could not have been filed for the offence under Section 395 of the IPC on the charge or allegations that the accused persons took away mobile phones, which were lying in the flat. According to Mr. Lakhani by any stretch of imagination it cannot be said that the common object of the unlawful assembly was to commit dacoity. According to Mr. Lakhani, even if the entire case of the prosecution is believed or accepted to be true, the dispute between the applicants and the deceased and his friends was relating to a girl by name Sweety. On the date of the incident, the writapplicants stormed into the flat of the first informant with the intention to thrash all those persons who were hiding themselves. According to Mr. Lakhani, if out of fear, the deceased tried to make good his escape by jumping from the balcony of the fourth floor to the other building and in the process fell down, it cannot be said that such act of the accused persons being so imminently dangerous that Page 5 of 47 HC-NIC Page 5 of 47 Created On Sat May 06 01:27:56 IST 2017 R/SCR.A/9248/2016 CAV JUDGMENT it caused the death of the deceased.
5. Mr. Lakhani, in support of his submissions has placed reliance on the following decisions:
1) 2013 (2) GLH 706 Lashuben Chemabhai Chaudhary Vs. State of Gujarat
2) 2014 (3) GLR 2216 Laljibhai Maganbhai Vasava Vs. State of Gujarat
3) AIR 1977 SC 45 State of Andrapradesh Vs. Rayavarapu Punnayya & Anr.
4) AIR 1968 SC 881
State of Madhya Pradesh Vs. Ram Prasad
5) 2005 (2) GLH 481
Chetankumar Shankarlal Patel Vs. State of Gujarat
6) 1961 (2) GLR 678 Himatsing Shivsing Vs. State of Gujarat
6. In such circumstances referred to above, Mr. Lakhani prays that there being merit in this application, the same be allowed and the applicants be discharged from the offence punishable under Sections 304 and 395 of the I.P.C. respectively.
7. On the other hand, this application has been vehemently opposed by Mr. Chandrani, the learned counsel appearing for the first informant and the learned APP appearing for the respondentState. Both the learned counsel submitted that at this stage, the Court may not go into the question whether the offence under Sections304 and 395 of the IPC is made out or not. Primafacie, the materials on record is sufficient for the trial Court to frame the charge accordingly. Mr. Chandrani submitted Page 6 of 47 HC-NIC Page 6 of 47 Created On Sat May 06 01:27:56 IST 2017 R/SCR.A/9248/2016 CAV JUDGMENT that ultimately it is the act of the applicants in storming into the flat armed with deadly weapons that created a panic and fear in the mind of the deceased, which forced him to jump from the balcony and in the process, fell down sustaining serious injuries resulting into his death. According to Mr. Chandrani, such act of the accused persons could be termed as imminently dangerous so as to in all probability cause death or such bodily injury.
8. Mr. Chandrani seeks to rely on the following averments made in the affidavitinreply filed on behalf of the respondent no.2.
15. I would further submit that in view of the above what was the intention of the accused in the present case is also to be presumed in light of the aforesaid judgments and observations. I would submit that in the present case the dispute admittedly started before two days of the incident followed by threatening on phone, abusing the deceased and witnesses, asking them to meet and thereafter chasing them up to their residence on 5th floor and thereafter entering into their residence by breaking up the main door, armed with deadly weapons and further trying to break upon the door of the rooms and gallery wherein the witnesses and the deceased were trying to hide themselves to save their lives, suggest that the accused were intending to cause bodily injuries to the witnesses and deceased.
16. I would respectfully submit that it is not the case of the prosecution or defense that the deceased jumped on his on voluntarily to caught hold of something and met with an accident as usually happens on Sankarant, that one with an intention to catch a flying kite may risk his own life and accidentally die, in the present case the deceased was threatened, induced, compelled, instigated or motivated to do a particular act which the otherwise would not have done if he would not have been so threatened, induced, compelled, instigated or motivated by the accused.
17. I would submit that the act of entering into someone's house after preparation of hurt and assault is an illegal act punishable under section 452 of Indian Penal Code and thereafter any incident pursuant to that illegal act of the accused occurs which may be may not be premeditated, resulting into such bodily injuries which finally results into the death of a person would fall under the definition of section 300 of Indian Penal Code.
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18. I would also submit that what is necessary is the intention of the accused which can be presumed by the surrounding circumstances and illegal act of entering into the residence of the witnesses and the deceased with an intention to cause bodily injury and in furtherance of that if a person sustains any type of injury which results in his death, the accused are to be prosecuted for the offence of committing culpable homicide.
19. I would submit the act pursuant to which the incident has occurred is an illegal act and the incident which has occurred is in furtherance of the act, in the present case the deceased tried to save himself by hiding inside the gallery locking the door from inside and would not have tried to escape or jump if the accused would not have entered into the house by breaking the main door armed with deadly weapons.
20. It is further submitted that three intention of the accused is also to be seen and presumed from the view point of a layman as seen and felt by the deceased in the present case before attempting to save himself from the clutches of the accused and to save himself from the injury likely to be caused by the accused persons. Meaning thereby that the intention of the accused was to cause bodily injury which may result into the death of the deceased is to be presumed from the view point of the deceased and therefore with an intention to save himself the deceased made an attempt, which resulted in his death, just because the manner in which the deceased died was not the manner in which the accused intended, they cannot come out of the embrace of section 299 of IPC but it is because of their illegal act the incident occurred as once the criminal act is set in to motion by the accused the end result is irrelevant and they cannot be absolved from the final outcome of their illegal act.
21. I would further beg to elaborate my submission by way of certain examples: A) 2 to 3 adult male at night hours breaks the door and enters into a house where a lady resides alone, the lady with an intention to save herself tries to escape from his gallery to the adjoining gallery and falls from the gallery sustaining deadly injuries and later on dies, than in that case there would be a presumption that the accused entered the house with an intention to commit an offence while on the other side the deceased had a thought that she would be raped or murdered and thus, only with an intention to save herself tried to escape, than in that case the accused cannot be held responsible for the offence of house trespass as the ultimate outcome was the death of the lady as the death would not have occurred if the accused would not have committed an Page 8 of 47 HC-NIC Page 8 of 47 Created On Sat May 06 01:27:56 IST 2017 R/SCR.A/9248/2016 CAV JUDGMENT offence of house trespass, what is required to be seen is the fear and apprehension in the mind of the deceased at that particular point of time pursuant to which he acted in a particular way to save herself and died.
B) That 5 persons with an intention to commit dacoity tried to stop a car on the highway in the mid night but the driver moves speedily and thereafter the accused persons chases the car and during this cahse, the car collides resulting in death of driver the case would fall under section 300 of Indian Penal Code and it cannot be said that the intention of the accused was not of committing any murder but was of committing dacoity and hence, shall be punishable under section 395 of Indian Penal Code.
C) A, owner of a house is aware about the short circuit in his electric switches ask the deceased to switch on the electric lights, and on touching the electric switch if the deceased dies, in that case the owner of the house i.e. A would be held liable for the offence of culpable homicide as the deceased would not have voluntarily on his own would have done the act if he was not so asked, encouraged, induced, compelled, instigated or motivated to do that particular act which resulted in his death, now whether there was any intention or knowledge on part of the accused is to be proved by the prosecution during the course of trial.
D) A with an intention to cause bodily injury threatens B by showing knife, B with an intention to save himself jumps from running train and because of that act B falls down and train passes over him and he dies in any other manner, here A would be liable for the offence of culpable homicide, though he may not have intended that the B should jump.
E) Accused persons deploys a bomb in a busy market area and because of the blast certain persons dies because of the blast injuries and a few persons succumbs to their injuries which they sustained because of the stampede created because of the terror on the crowd, the accused would also be held responsible for the offence of culpable homicide even though the deceased may not have sustained any injuries by way of the bomb blast but as the act of the accused which is illegal instigated, abetted, encouraged, induced and compelled the crowd to run in all the directions to save their lives which resulted in death of a few persons and causing injuries to others, the accused in that case cannot be absolved from their liability that they injury caused to those persons were not at all intended or very caused by way of the bomb blast.
22. I would therefore submit that in the above illustrations the intentions of the accused may be may not be of committing murder but Page 9 of 47 HC-NIC Page 9 of 47 Created On Sat May 06 01:27:56 IST 2017 R/SCR.A/9248/2016 CAV JUDGMENT their intention was of committing a particular offence which they were not able to commit and because of their illegal act the victim died and hence, the same would not absolve them from the final outcome of their illegal act in furtherance to which the persons has died as the incident or the death is the outcome of their preparation, intention, illegal act and other attending circumstances.
23. I would submit that as the person has died in the present case, if the case of the accused does not fall under section 302 04 304 of Indian Penal Code and it may fall under section 306 of Indian Penal Code and the illegal act of the accused cannot go unpunished and as such the act of the accused is not as such that which would go beyond the scope of the Indian Penal Code.
24. I would submit that act of chasing the witnesses and the deceased and entering into their residence may also amount to instigation and abetment to commit suicide than in that case the accused would be held liable for the offence punishable under section 306 of Indian Penal Code but as it is not the case of the prosecution or even the defense that the deceased attempted to commit suicide on his own, voluntarily and hence the death of the deceased is because of some external factor, instigation, apprehension or threat attributed to the accused persons.
25. I would therefore submit that, the way the accused entered the premise with an intention of causing injury and knowledge of committing criminal tresspass, is sufficient to show that a prima facie case exists against the accused that the accused entered into premises with an intention to cause such bodily injuries which may result in to death.
26. I would further submit that the incident may be seen as an overact of the terror which has caused fear in the mind of the deceased and others who were present in the flat and were hiding from the accused persons, and it was this fear due to which the deceased tried to evade the situation, but was unfortunate to loss his life out of the said effort to evade fear and terror.
27. I would also submit that not only the intention and knowledge of the accused about the circumstances created are to be seen but also the thought processes going in the mind of the deceased is to be presumed and are to be taken into consideration as to what was his intention when he made an attempt to jump from the gallery.
28. I would submit that it may kindly be appreciated that once the intention with which the criminal act is set into motion, the end result is not to be considered as the same shall not isolate the accused against Page 10 of 47 HC-NIC Page 10 of 47 Created On Sat May 06 01:27:56 IST 2017 R/SCR.A/9248/2016 CAV JUDGMENT the framing of charges for the same.
29. I would also submit that though the chargesheet came to be filed for offences punishable u/s. 304, 395, 452, 342, 506(2), 294(B), 427 and 201 of the IPC r/w Section 135 of the GP Act, however the application came to preferred only with a view to not let the charge u/s.395 and charge u/s.304 of IPC be framed, whereas admittedly rest of the offences as alleged are kept untouched meaning there by that as far as 452 and 506(2) of IPC is accepted by the accused at this stage, giving a prima facie stage for building a case which is fit to be considered for framing of charge under all the sections which are invoked and charge sheeted by the concerned Investigating Officer.
30. It is further submitted that as far as the offence u/s. 395 is concerned, merely because the articles which were looted/ robbed were not recovered, shows lacuna on the part of the I.O. as there has been an specific allegation with regards to the commission of the said offence and missing of those articles after the illegal house trespass committed by the accused, and thus only because the I.O. has not carried out the investigation in proper manner, the case doesn't become vague and weak. Moreover, the offence of robbery might have been committed is sufficient to frame charge and the nonrecovery of the article shall not erase the primafacie allegation which is sufficient to proceed against the accused persons, as at the stage of framing of charges what is required to be presumed is that the accused might have committed the offence and not must as it is to be seen at the stage of convicting the accused.
9. Mr. Chandrani in support of his submissions has placed reliance on the following decisions:
1) Criminal Misc. Application No.3120 of 2014;
Decided on 06/01/2015 Hanif Usmanbhai Kalva Vs. State of Gujarat
2) 2012 Law Suit (SC) 609 Amit Kapoor Vs. Ramesh Chander & Anr.
3) 2010 Law Suit (SC) 1099
Rajbir @ Raju And Anr. Vs. State of Haryana
4) 2003 Law Suit (SC) 1277
State of Maharashtra Vs. Salman Salim Khan
5) 1961 Law Suit (SC) 194
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Om Prakash Vs. State of Punjab
6) 1961 Law Suit (SC) 193
Abhayanand Mishra Vs. State of Bihar
10. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the applicants should be discharged so far as the offence punishable under Sections304 and 395 of the IPC is concerned.
11. The moot question that falls for my consideration is whether the Police could have registered the FIR for the offence under Section304 of the IPC. The second question that falls for my consideration is whether the Police could have filed chargesheet for the offence under Section 304 of the IPC. The third question that falls for my consideration is that how could the police have decided whether the case falls within any of the exceptions to Section300 of the IPC.
12. In order to appreciate the question, it will be profitable to refer to the definition of murder as provided in Section 300 of the Indian Penal Code which is quoted below:
300. Murder Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or 2ndly.If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused. or 3rdly.If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or 4thly.If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily Page 12 of 47 HC-NIC Page 12 of 47 Created On Sat May 06 01:27:56 IST 2017 R/SCR.A/9248/2016 CAV JUDGMENT injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
Illustrations
(a) A shoots Z with the intention of killing him. Z dies in consequence. A commits murder.
(b) A, knowing that Z is labouring under such a disease that a blow is likely to cause his death, strikes him with the intention of causing bodily injury. Z dies in consequence of the blow. A is guilty of murder, although the blow might not have been sufficient in the ordinary course of nature to cause the death of a person in a sound state of health. But if A, not knowing that Z is labouring under any disease, gives him such a blow as would not in the ordinary course of nature kill a person in a sound state of health, here A, although he may intend to cause bodily injury, is not guilty of murder, if he did not intend to cause death, or such bodily injury as in the ordinary course of nature would cause death.
(c) A intentionally gives Z a swordcut or clubwound sufficient to cause the death of a man in the ordinary course of nature. Z dies in consequence. Here A is guilty of murder, although he may not have intended to cause Z's death.
(d) A without any excuse fires a loaded cannon into a crowd of persons and kills one of them. A is guilty of murder, although he may not have had a premeditated design to kill any particular individual.
Exception 1.When culpable homicide is not murder.Culpable homicide is not murder if the offender, whilst deprived of the power of selfcontrol by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.
The above exception is subject to the following provisos: First.That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.
Secondly.That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant.
Thirdly.That the provocation is not given by anything done in the lawful exercise of the right of private defence.
Page 13 of 47HC-NIC Page 13 of 47 Created On Sat May 06 01:27:56 IST 2017 R/SCR.A/9248/2016 CAV JUDGMENT Explanation.Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact. Illustrations
(a) A, under the influence of passion excited by a provocation given by Z, intentionally kills Y, Z's child. This is murder, inasmuch as the provocation was not given by the child, and the death of the child was not caused by accident or misfortune in doing an act caused by the provocation.
(b) Y gives grave and sudden provocation to A. A, on this provocation, fires a pistol at Y, neither intending nor knowing himself to be likely to kill Z, who is near him, but out of sight. A kills Z. Here A has not committed murder, but merely culpable homicide.
(c) A is lawfully arrested by Z, a bailiff. A is excited to sudden and violent passion by the arrest, and kills Z. This is murder, inasmuch as the provocation was given by a thing done by a public servant in the exercise of his powers.
(d) A appears as a witness before Z, a Magistrate. Z says that he does not believe a word of A's deposition, and that A has perjured himself. A is moved to sudden passion by these words, and kills Z. This is murder.
(e) A attempts to pull Z's nose. Z, in the exercise of the right of private defence, lays hold of A to prevent him from doing so. A is moved to sudden and violent passion in consequence, and kills Z. This is murder, inasmuch as the provocation was giving by a thing done in the exercise of the right of private defence.
(f) Z strikes B. B is by this provocation excited to violent rage. A, a bystander, intending to take advantage of B's rage, and to cause him to kill Z, puts a knife into B's hand for that purpose. B kills Z with the knife. Here B may have committed only culpable homicide, but A is guilty of murder.
Exception 2.Culpable homicide is not murder if the offender in the exercise in good faith of the right of private defence or person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence.
Illustration Page 14 of 47 HC-NIC Page 14 of 47 Created On Sat May 06 01:27:56 IST 2017 R/SCR.A/9248/2016 CAV JUDGMENT Z attempts to horsewhip A, not in such a manner as to cause grievous hurt to A. A draws out a pistol. Z persists in the assault. A believing in good faith that he can by no other means prevent himself from being horsewhipped, shoots Z dead. A has not committed murder, but only culpable homicide.
Exception 3.Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without illwill towards the person whose death is caused.
Exception 4.Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner.
Explanation.It is immaterial in such cases which party offers the provocation or commits the first assault.
Exception 5.Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent.
Illustration A, by instigation, voluntarily causes Z, a person under eighteen years of age, to commit suicide. Here, on account of Z's youth, he was incapable of giving consent to his own death; A has therefore abetted murder.
13. At this stage, it will also be profitable to refer to the following observations of the Supreme Court in the case of State of A.P. vs. Raayavarapu Punnaya, reported in AIR 1977 SC 45, where the Supreme Court laid down the distinction between murder and the culpable homicide not amounting to murder in the following way:
12. In the scheme of the Penal Code, 'culpable homicide' is genus and 'murder' its specie. All 'murder' is 'culpable homicide' but not vice versa.
Speaking generally, 'culpable homicide' sans 'special characteristics of murder' is 'culpable homicide not amounting to. murder'. For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognises three degrees of Page 15 of 47 HC-NIC Page 15 of 47 Created On Sat May 06 01:27:56 IST 2017 R/SCR.A/9248/2016 CAV JUDGMENT culpable homicide. The first is, what may be called, 'culpable homicide of the first degree'. This is the gravest form of culpable homicide, which is defined in Section 300 as 'murder'. The second may be termed as 'culpable homicide of the second degree'. This is punishable under the First Part of Section 304. Then, there is 'culpable homicide of the third degree'. This is the lowest type of culpable homicide and the punishment provided for it is, also, the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the Second Part of Section 304.
13. The academic distinction between 'murder' and 'culpable homicide not amounting to murder' has vexed the courts for more than a century. The confusion is caused if courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the key words used in the various clauses of Sections 299 and 300. The following comparative table will be helpful in appreciating the points of distinction between the two offences.
Section 299 Section 300
A person commits culpable Subject to certain exceptions
homicide if the act by which the culpable homicide is murder if the
death is caused is done .... act by which the death is done ....
INTENTION
(a) with the intention of (1) with the intention of causing
causing death; or death; or
(b) with the intention of (2) with the intention of causing
causing such bodily injury as is such bodily injury as the offender
likely to cause death; or knows to be likely to cause the
death of the person to whom the
harm is
caused; or
(3) with the intention of causing
bodily injury to any person and the
bodily injury intended to be inflicted
is sufficient in the ordinary course
of nature to cause death; or
KNOWLEDGE
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(c) with the knowledge that the (4) with the knowledge that the act
act is likely to cause death. is so imminently dangerous that it
must in all probability cause death
or such bodily injury as is likely to
cause death and without any excuse
for incurring the risk of causing
death or such injury as is mentioned
above
14. Clause (b) of Section 299 corresponds with Clauses (2) and (3) of Section 300. The distinguishing feature of the mens rearequisite under Clause (2) is the knowledge possessed by the offender regarding the particular victim being in such a peculiar condition or state of health that the intentional harm caused to him is likely to be fatal, notwithstanding the fact that such harm would not in the ordinary way of nature be sufficient to cause death of a person in normal health or condition. It is noteworthy that the 'intention to cause death' is not an essential requirement of Clause (2). Only the intention of causing the bodily injury coupled with the offender's knowledge of the likelihood of such injury causing the death of the particular victim, is sufficient to bring the killing within the ambit of this Clause. This aspect of Clause (2) is borne out by Illustration (b) appended to Section 300.
15. Clause (b) of Section 299 does not postulate any such knowledge on the part of the offender. Instances of cases falling under Clause (2) of Section 300 can be where the assailant causes death by a fist blow intentionally given knowing that the victim is suffering from an enlarged liver, or enlarged spleen or diseased heart and such blow is likely to cause death of that particular person as a result of the rupture of the liver, or spleen or the failure of the heart, as the case may be. If the assailant had no such knowledge about the disease or special frailty of the victim, nor an intention to. cause death or bodily injury sufficient 'in the ordinary course of nature to cause death, the offence will not be murder, even if the injury which caused the death, was intentionally given.
16. In Clause (3) of Section 300, instead of the words 'likely to cause death' occurring in the corresponding Clause (b) of Section 299, the words "sufficient in the ordinary course of nature" have been used. Obviously, the distinction lies between a bodily injury likely to cause death and a bodily injury sufficient in the ordinary course of nature to cause death. The distinction is fine but real, and if overlooked, may result 'in miscarriage of justice. The difference between Clause (b) of Section 299 and Clause (3) of Section 300 is one of the degree of probability of death resulting from the intended bodily injury. To put it more broadly, it is the degree of probability of death which determines Page 17 of 47 HC-NIC Page 17 of 47 Created On Sat May 06 01:27:56 IST 2017 R/SCR.A/9248/2016 CAV JUDGMENT whether a culpable homicide is of the gravest, medium or the lowest degree. The word "likely" in Clause (b) of Section 299 conveys the sense of 'probable' as distinguished from a mere possibility. The words "bodily injury... sufficient in the ordinary course of nature to cause death" mean that death will be the "most probable" result of the injury, having regard to the ordinary course of nature.
17. For cases to fall within Clause (3), it is not necessary that the offender intended to cause death, so long as the death ensues from the intentional bodily injury or injuries sufficient to cause death in the ordinary course of nature. Rajwant and another v. State of Kerala, AIR 1966 SC 1874, is an apt illustration of this point.
18. In Virsa Singh v. The State of Punjab, AIR 1958 SC 465, Vivian Bose, J. speaking for this Court, explained the meaning and scope of Clause (3), thus :
"The prosecution must prove the following facts before it can bring a case under Sec.300, '3rdly'. First, it must establish, quite objectively, that a bodily injury is present; secondly the nature of the injury must be proved. These are purely objective investigations. It must be proved that there was an intention to inflict that particular injury, that is to say, that it was not accidental or unintentional or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further, and, fourthly it must be ,proved that the injury of the type just described made up of the three elements set out above was sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender."
19. Thus, according to the rule laid down in Virsa Singh's case (supra), even if the intention of accused was limited to the infliction of a bodily injury sufficient to cause death in the ordinary course of nature and did not extend to the intention of causing death, the offence would be murder. Illustration (c) appended to Section 300 clearly brings out this point. 20. Clause (c) of Section 299 and Clause (4) of Section 300 both require knowledge of the probability of the act causing death. It is not necessary for the purpose of this case to dilate much on the distinction between these corresponding clauses. It will be sufficient to say that Clause (4) of Section 300 would be applicable where the knowledge of the offender as to the probability of death of a person or persons in general as distinguished from a particular person or persons being caused from his imminently dangerous act, approximates to a practical certainty. Such knowledge on the part of the offender must be of the highest degree of probability, the act having been committed by the offender without any excuse for incurring the risk of causing death or such injury as aforesaid.
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21. From the above conspectus, it emerges that whenever a court is confronted with the question whether the offence is 'murder' or 'culpable homicide not amounting to murder,' on the facts of a case, it will be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be, whether the accused has done an act by doing which he has caused the death of another. Proof of such causal connection between the act of the accused and the death, leads to the second stage for considering whether that act of the accused amounts to "culpable homicide" as defined in Section
299. If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of Section 300, Penal Code is reached. This is the stage at which the Court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four Clauses of the definition of 'murder' contained in Section 300. If the answer to this question is in the negative, the offence would be 'culpable homicide not amounting to murder', punishable under the First or the Second Part of Section 304, depending. respectively, on whether the second or the third Clause of Section 299 is applicable. If this question is found in the positive, but the case comes within any of the Exceptions enumerated in Section 300, the offence would still be 'culpable homicide not amounting to murder', punishable under the First Part of Section 304, Penal Code.
14. I am of the view that, in the first instance, no first information report can be registered for the offence under section 304 of the Indian Penal Code. I am also of the view that the police, at the end of the investigation, could not have filed the chargesheet for the offence under section 304 of the Indian Penal Code. Section 304 of the Indian Penal Code would apply provided the case falls within one of the exceptions to section 300 of the I.P.C. If a chargesheet is filed for the offence of murder, and if it is the defence case of the accused that the offence is one of culpable homicide not amounting to murder, then he has to bring the case within one of the exceptions to section 300.
15. In the aforesaid context, I may refer to and rely upon the decision of the Supreme Court in the case of Harendra Nath Mandal vs. State of Bihar, 1993 (2) SCC 435, in which the Supreme Court observed as Page 19 of 47 HC-NIC Page 19 of 47 Created On Sat May 06 01:27:56 IST 2017 R/SCR.A/9248/2016 CAV JUDGMENT under;
Section 304 does not create an offence but provides the punishment for culpable homicide not amounting to murder. In view of section 299 of the Penal Code, whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. In view of section 300 of the Penal Code, except in cases covered by the five exceptions mentioned therein, culpable homicide is murder. It is well known that if a death is caused and the case is covered by any one of the five exceptions of section 300 then such culpable homicide shall not amount to murder. Section 304 provides punishment for culpable homicide not amounting to murder and draws a distinction in the penalty to be inflicted in cases covered by one of the five exceptions, where an intention to kill is present and where there is only knowledge that death will be a likely result, but intention to cause death or such bodily injury which is likely to cause death is absent. To put it otherwise if the act of the accused falls within any of the clauses 1, 2 and 3 of section 300 but is covered by any of the five exceptions it will be punishable under the first part of section 304. If, however, the act comes under clause 4 of section 300 i.e. the person committing the act knows that it is so imminently dangerous that it must, in all probability cause death but without any intention to cause death and is covered by any of the exceptions, it will be punishable under the second part. The first part of section 304 applies where there is guilty intention whereas the second part applies where there is guilty knowledge. But before an accused is held guilty and punished under first part or second part of section 304 , a death must have been caused by him under any of the circumstances mentioned in the five exceptions to section 300, which include death caused while deprived of power of selfcontrol under grave and sudden provocation, while exercising in good faith the right of private defence of person or property, and in a sudden fight in the heat of passion without premeditation.
16. Thus, section 304 of the Indian Penal Code does not create an offence of culpable homicide, not amounting to murder. That section provides for punishment in case of culpable homicide, not amounting to murder. The first part of it provides for punishment of such offence, Page 20 of 47 HC-NIC Page 20 of 47 Created On Sat May 06 01:27:56 IST 2017 R/SCR.A/9248/2016 CAV JUDGMENT when the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death. The second part of it provides for punishment in a case when the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death. The offence that is made punishable under that Section is the same offence namely; an offence of culpable homicide not amounting to murder. It only provides different punishments, taking into consideration, whether the act was done with a particular intention or the act was done with the knowledge that is likely to cause death without any intention to cause death, or to cause such bodily injury as is likely to cause death. It will be significant to note that this Section 304 covers cases also where the offence is prima facie an offence of murder, punishable under Section 302, but in view of the application of any one of the exceptions given in Section 300 of the Indian Penal Code, the offence of murder is reduced to an offence of culpable homicide, not amounting to murder.
17. At this stage, and in the aforesaid context, I must look into section 105 of the Evidence Act, which reads as under;
105. Burden of proving that case of accused comes within exceptions.When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code, (45 of 1860), or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances.
Illustrations
(a) A, accused of murder, alleges that, by reason of unsoundness of mind, he did not know the nature of the act. The burden of proof is on A. Page 21 of 47 HC-NIC Page 21 of 47 Created On Sat May 06 01:27:56 IST 2017 R/SCR.A/9248/2016 CAV JUDGMENT
(b) A, accused of murder, alleges, that by grave and sudden provocation, he was deprived of the power of selfcontrol. The burden of proof is on A.
(c) Section 325 of the Indian Penal Code, (45 of 1860), provides that whoever, except in the case provided for by section 335, voluntarily causes grievous hurt, shall be subject to certain punishments.
18. Thus, the plain reading of section 105 of the Evidence Act makes it clear that the burden of proving the existence of circumstances, bringing the case within any of the general exceptions in the Indian Penal Code or within any special exception or proviso, is upon the accused and the court shall presume the absence of such circumstances.
19. In the aforesaid context, I may refer to and rely upon a three Judge Bench decision of the Supreme Court in the case of Vijayee Singh & Ors. vs. State of U.P., AIR 1990 SC 1459, wherein the Supreme Court observed as under;
22. At this stage it becomes necessary to consider the meaning of the words "the Court shall presume the absence of such circumstances"
occurring in Section 105 of the Evidence Act. Section 4 of the Act explains the meaning of the term "shall presume" as to mean that the Court shall regard the fact as proved unless and until it is disproved. 'From a combined reading of these two Sections it may be inferred that where the existence of circumstances bringing the case within the exception is pleaded or is raised the Court shall presume the absence of such circumstances as proved unless and until it is disproved. In Section 3 of the Act meaning of the terms "proved", "disproved" and "not proved" are given. As per this provision, a fact is said to be "proved" when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. A fact is said to be "disproved" when, after considering the matters before it, the Court either believes 597 that it does not exist, or considers its nonexistence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist. A fact is said to be "not proved" when it is neither "proved" nor "disproved."
23. The first part of Section 105 as noted above lays down that when Page 22 of 47 HC-NIC Page 22 of 47 Created On Sat May 06 01:27:56 IST 2017 R/SCR.A/9248/2016 CAV JUDGMENT a person is accused of an offence, the burden of proving the existence of circumstances bringing the case within any of the exceptions or proviso is on him and the latter part of it lays down that the Court shall presume the absence of such circumstances. In a given case the accused may discharge the burden by expressly proving the existence of such circumstances, thereby he is able to disprove the absence of circumstances also. But where he is unable to discharge the burden by expressly proving the existence of such circumstances or he is unable to disprove the absence of such circumstances, then the case would fall in the category of "not proved" and the Court may presume the absence of such circumstances. In this background we have to examine the meaning of the words "the Court shall presume the absence of such circumstances" bearing in mind the general principle of criminal jurisprudence that the prosecution has to prove its case beyond all reasonable doubt and the benefit of every reasonable doubt should go to the accused.
24. It will be useful to refer to some of the passages from the text books of outstanding authors on evidence and then proceed to consider the ratio laid down by the Supreme Court cases on this aspect. In Phipson on Evidence, 13th edn. page 44, a passage reads as follows:
"The burden is upon the prosecution of proving a defendant's guilt beyond reasonable doubt before he is convicted. Even where the evidential burden shifts to the defendant the burden of establishing proof beyond reasonable doubt remains upon the prosecution and never changes. If on the whole case the jury have such a doubt the defendant is entitled to be acquitted."
Another passage at page 48 reads as follows:
"In criminal cases the prosecution discharge their evidential burden by adducing sufficient evidence to raise a prima facie case against the accused. If no evidence is called for the defence the tribunal of fact must decide whether the prosecution has succeeded in discharging its persuasive 598 burden by proving its case beyond a reasonable doubt. In the absence of any defence evidence, the chances that the prosecution has so succeeded fare greater. Hence the accused may be said to be under an evidential burden if the prosecution has established a prima facie case. Discharge of the evidential burden by defence is not a prerequisite to an acquittal. The accused is entitled to be acquitted if at the end of and on the whole of the case, there is a reasonable doubt created by the evidence given by either the prosecution or the prisoner .....No matter what the charge ..... the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.
XX XX XX
XX XX XX
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In many cases, however, the accused's defence will involve introducing new issues, for example, automatism, provocation, selfdefence, duress, etc. Once there is any evidence to support such "explanations" the onus of disproving them rests upon the prosecution. The accused, either by cross examination of the prosecution witnesses or by evidence called on his behalf or by a combination of the two, must place before the court such material as makes the defence a live issue fit and proper to be left to the jury. But once he has succeeded in doing this and thereby discharged his evidential burden it is then for the Crown to destroy that defence in such a manner as to leave in the jury's minds no reasonable doubt that the accused cannot be absolved on the grounds of the alleged facts constituting the defence." Dealing with the presumptions of law, the author has noted on page 60, thus:
"Generally in criminal cases (unless otherwise directed by statute and subject to 415 ante) the presumption of innocence casts on the prosecutor the burden of proving every ingredient of the offence, even though negative averments be involved therein. Thus, in cases of murder, the burden 599 of proving death as a result of a voluntary act of the accused and malice on his part is on the prosecution. On charges of rape, etc. the burden of proving nonconsent by the prosecutrix is on the prosecution and in bigamy, that of proving the defendant's knowledge that his or her spouse was alive within the seven years last past."
Wigmore on evidence, dealing with the "Legal Effect of a presumption"
(3rd ed., Vol. IX p. 289) explains: "It must be kept in mind that the peculiar effect of a presumption 'of law' (that is, the real presumption) is merely to invoke a rule of law compelling the jury to reach the conclusion 'in the absence of evidence to the contrary' from the opponent. If the opponent does offer evidence to the contrary (sufficient to satisfy the Judge's requirement of some evidence), the presumption disappears as a rule of Taylor in his 'Treatise on the Law of Evidence' ( 12th Edn. Vol. 1 page 259) points out:
"On the two fold ground that a prosecutor must prove every fact necessary to substantiate his charge against a prisoner, and that the law will presume innocence in the absence of convincing evidence to the contrary, the burden of proof, unless shifted by legislative interference, will fall in criminal proceedings on the prosecuting party, though, to convict, he must necessarily have recourse to negative evidence. Thus, if a statute, in the direct description of an offence, and not by way of proviso (a), contain negative matter, the indictment or information must also contain a negative allegation, which must in general be supported by prima facie evidence."
Dealing with the presumptions, the author says: "The proper direction Page 24 of 47 HC-NIC Page 24 of 47 Created On Sat May 06 01:27:56 IST 2017 R/SCR.A/9248/2016 CAV JUDGMENT as to onus of proof where prima facie evidence has been given on the part of the prosecution which, if unanswered, would raise a presumption upon which the jury might be justified in finding a verdict of guilty, and the defendant has called evidence to rebut that presumption, is that if they accepted the explanation given 600 by and on behalf of the prisoner, or if that explanation raised in their minds a reasonable doubt as to his guilt, they should acquit him as the onus of proof that he was guilty still lay upon the prosecution. If upon the whole evidence the jury are left in a real state of doubt the prosecution has failed to satisfy the onus of proof which lies upon them." It is held in Nanavati's case that under Section 105 of the act the Court shall presume the absence of circumstances bringing the case within any of the exceptions, i.e. the Court shall regard the non existence of such circumstances as proved till they are disproved, but this presumption can be rebutted by the accused by introducing evidence to sup port his plea of accident in the circumstances mentioned therein. This presumption may also be rebutted by admissions made or circumstances elicited from the evidence led by the prosecution or by the combined effect of such circumstances and the evidence adduced by the accused. Dealing with the ingredients of the offence to be proved by the prosecution and the burden to be discharged under Section 105 of the Evidence Act by the accused and a reasonable doubt that may arise on the basis of such rebuttal evidence by the accused, it is observed:
"An illustration may bring out the meaning. The prosecution has to prove that the accused shot dead the deceased intentionally and thereby committed the offence of murder within the meaning of s. 300 of the Indian Penal Code; the prosecution has to prove the ingredients of murder, and one of the ingredients of that offence is that the accused intentional ly shot the deceased; the accused pleads that he shot at the deceased by accident without any intention or knowledge in the doing of a lawful act in a lawful manner by lawful means with proper care and caution, the accused against whom a presumption is drawn under s. 105 of the Evidence Act that the shooting was not by accident in the circumstances mentioned in s. 80 of the Indian Penal Code, may adduce evidence to rebut that presumption. That evidence may not be sufficient to prove all the ingredients of s. 80 of the Indian Penal Code, but may prove that the shooting was by accident or inadvertence, i.e. it was done without any intention or requisite state of mind, which is the essence of the offence, within the meaning of s. 300 Indian Penal Code. or at any rate may throw a reasonable doubt on the essential ingredients of the offence of murder. In that event, though the accused failed to bring his case 601 within the terms of s. 80 of the Indian Penal Code, the Court may hold that the ingredients of the offence have not been established or that the prosecution has not made out the case against the accused. In this view it might be said that the general Page 25 of 47 HC-NIC Page 25 of 47 Created On Sat May 06 01:27:56 IST 2017 R/SCR.A/9248/2016 CAV JUDGMENT burden to prove the ingredients of the offence, unless there is a specific statute to the contrary, is always on the prosecution, but the burden to prove the circumstances coming under the exceptions lies upon the accused. The failure on the part of the accused to establish all the circumstances bringing his case under the exception does not absolve the prosecution to prove the ingredients of the offence; indeed, the evidence, though insufficient to establish the exception, may be sufficient to negative one or more of the ingredients of the offence."
In Dahyabhai's case as already noted, the relevant portion reads thus:
"The evidence so placed may not be sufficient to discharge the burden under s. 105 of the Evidence Act, but it may raise a reasonable doubt in the mind of a Judge as regards one or other of the necessary ingredients of the offence itself. It may, for instance, raise a reasonable doubt in the mind of the judge whether the accused had the requisite intention laid down in S. 299 of the Penal Code."
25.The maxim that the prosecution must prove its case beyond reasonable doubt is a rule of caution laid down by the Courts of Law in respect of assessing the evidence in criminal cases. Section 105 places 'burden of proof' on the accused in the first part and in the second part we find a presumption which the Court can draw regarding the absence of the circumstances which presumption is always rebuttable. Therefore, taking the Section as a whole the 'burden of proof' and the presumption have to be considered together. It is axiomatic when the evidence is sufficient as to prove the existence of a fact conclusively then no difficulty arises. But where the accused introduces material to dis place the presumption which may affect the prosecution case or create a reasonable doubt about the existence of one or other ingredients of the offence and then it would amount to a case where prosecution failed to prove its own case beyond reasonable doubt. The initial obligatory presumption that the Court shall presume the absence of such circumstances gets lifted when a plea of exception is raised. More so when there are circumstances on the record (gathered from the prosecution evidence, chief and cross examinations, probabilities and circumstances, if any, introduced by the accused, either by adducing evidence or otherwise) creating a reasonable doubt about the existence of the ingredients of the offence. In case of such a reasonable doubt, the Court has to give the benefit of the same to the accused. The accused may also show on the basis of the material a preponderance of probability in favour of his plea. If there are absolutely no circumstances at all in favour of the existence of such an exception then the rest of the enquiry does not arise inspite of a mere plea being raised. But if the accused succeeds in creating a reasonable doubt or shows preponderance of probability in favour of his plea, the obligation on his part under Section 105 gets discharged and he Page 26 of 47 HC-NIC Page 26 of 47 Created On Sat May 06 01:27:56 IST 2017 R/SCR.A/9248/2016 CAV JUDGMENT would be entitled to an acquittal.
26. From what has been discussed above it emerges that the presumption regarding the absence of existence of circumstances regarding the exception can be rebutted by the accused by introducing evidence in any one of the manners mentioned above. If from such a rebuttal, a reasonable doubt arises regarding his guilt, the accused should get the benefit of the same. Such a reasonable doubt consequently negatives one or more of the ingredients of the offence charged, for instance, from such a rebuttal evidence, a reasonable doubt arises about the right of private defence then it follows that the prosecution has not established the necessary ingredients of intention to commit the offence. In that way the benefit of a reasonable doubt which arises from the legal and factual considerations even under Section 105 of the Evidence Act should necessarily go to the accused.
27 It can be argued that the concept of 'reasonable doubt' is vague in nature and the standard of 'burden of proof' contemplated under Section 105 should be somewhat specific, therefore, it is difficult to reconcile both. But the general principles of criminal jurisprudence, namely, that the prosecution has to prove its case beyond reasonable doubt and that the accused is entitled to the benefit of a reason able doubt, are to be borne in mind. The 'reasonable doubt' is one which occurs to a prudent and reasonable man. Section 3 while explaining the meaning of the words "proved", "disproved" and "not proved" lays down the standard of proof, namely, about the existence or nonexistence of the circumstances from the point of view of a prudent man. The Section is so worded as to provide for two conditions of mind, first, that in which a man feels absolutely certain of a fact, in other words, "believe it to exist" and secondly in which though he may not feel absolutely certain of a fact, he thinks it so extremely probable that a prudent man would under the circumstances act on the assumption of its existence. The Act while adopting the requirement of the prudent man as an appropriate concrete standard by which to measure proof at the same time contemplates of giving full effect to be given to circumstances or condition of probability or improbability. It is this degree of certainty to be arrived where the circumstances before a fact can be said to be proved. A fact is said to be disproved when the Court believes that it does not exist or considers its nonexistence so probable in the view of a prudent man and now we come to the third stage where in the view of a prudent man the fact is not proved i.e. neither proved nor disproved. It is this doubt which occurs to a reasonable man, has legal recognition in the field of criminal disputes. It is something different from moral conviction and it is also different from a suspicion. It is the result of a process of keen examination of the entire material on record by 'a prudent man'.
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20. It was held in the case of Rishi Kesh Singh Vs. State reported in AIR 1970 All. 51 (FB) that: "The accused person who pleads an exception is entitled to be acquitted if upon a consideration of the evidence as a whole (including the evidence given in support of the plea of the general exception) a reasonable doubt is created in the mind of the Court about the built of the accused".
In that case, the result of a consideration of the decisions of the Supreme Court in relation to the provisions of Section 105 of the Evidence Act was summed up Beg, J (as His Lordships then was) as follows (at page 9798):
". . . an accused's plea of an exception may reach one of three not sharply demarcated stages, one succeeding the other, depending upon the effect of the whole evidence in the case judged by the standard of a prudent man weighing or balancing probabilities carefully. These stages are: firstly, a lifting of the initial obligatory presumption given at the end of section 105 of the Act; secondly, the creation of a reasonable doubt about the existence of an ingredient of the offence; and, thirdly, a complete proof of the exception by 'a preponderance of probability', which covers even a slight tilt of the balance of probability in favour of the accused's plea. The accused is not entitled to an acquittal if his plea does not get beyond the first stage. At the second stage, he becomes entitled to acquittal by obtaining a bare benefit of doubt. At the third stage, he is undoubtedly entitled to an acquittal. This, in my opinion, is the effect of the majority view in Parbhoo'. case which directly relates to first two stages only. The Supreme Court decisions have considered the last two stages so far, but the first stage has not yet been dealt with directly or separately there in any case brought to our notice."
21. Provisions of Section-105 of the Evidence Act, which are applicable in such cases, contain what are really two kinds of burden of the accused who sets up an exception; first, there is the onus laid down of proving the existence of circumstances bringing the case within any of the General exceptions in the Indian Penal Code, or, within any special exception or proviso contained in any other part of the same Code, or in Page 28 of 47 HC-NIC Page 28 of 47 Created On Sat May 06 01:27:56 IST 2017 R/SCR.A/9248/2016 CAV JUDGMENT any law defining the offence, and, secondly, there is the burden of introducing or showing evidence which results from the last part of the provision which says that "the Court shall presume the absence of such circumstances". The effect of this obligatory presumption at the end of Section 105 of the Evidence Act is that the Court must start by assuming that no facts exist which could be taken into consideration for considering the plea of self defence as an exception to the criminal liability which would otherwise be there. But, when both sides have led evidence of their respective versions, the accused can show, from any evidence on the record, whether tendered by the prosecution or the defence, that the mandatory presumption is removed. the last mentioned burden is not really a burden of establishing the plea fully but of either introducing or of showing the existence of some evidence to justify the taking up of the plea. The burden resulting from the obligatory presumption is not difficult to discharge and its removal may not be enough nor an acquittal.
22. Section 105 of the Evidence Act was thus explained in Rishi Kesh Singh's case (supra) (at P. 95):
"Even a literal interpretation of the first part of Section 105 could indicate that 'the burden of proving the existence of circumstances bringing the case' within an exception is meant to cover complete proof of the exception pleaded, by a preponderance of probability, as well as proof of circumstances showing that the exception may exist which will entitle, the accused to the benefit of doubt on the ingredients of an offence. If the intention was to confine the benefit of bringing a case within an exception to cases where the exception was established by a preponderance of probability, more direct and definite language would have been employed by providing that the accused must 'prove the existence' of the exception pleaded. But, the language used in the first part of Section 105 seems to be deliberately less precise so that the accused, even if he fails to discharge his duty fully, by establishing the existence of an exception, may get the benefit of the exception in directly when the prosecution fails in its duty to eliminate genuine doubt about his guilt introduced by the accused. Again, the last part of Page 29 of 47 HC-NIC Page 29 of 47 Created On Sat May 06 01:27:56 IST 2017 R/SCR.A/9248/2016 CAV JUDGMENT Section 105, even if strictly and literally interpreted, does not justify reading into it the meaning that the obligatory presumption must last until the accused's plea is fully established and not just till circumstances (i.e. not necessarily all) to support the plea are proved. Moreover, a restrictive interpretation of Section 105, excluding an accused 11 from the benefit of bringing his case within an exception until he fully proves it, is ruled out by the declaration of law by the Supreme Court that there is no conflict between Section 763 105 and the prosecution's duty to prove its case beyond reasonable doubt. Hence, the obligatory presumption, at the end of Section 105, cannot be held to last until the accused proves his exception fully by a preponderance of probability. It is necessarily removed earlier or operates only initially as held clearly by judges taking the majority view in Parbhoo's case, 1941 All LJ 619AIR 1941 All 402 (FB)".
It was also said there (at p. 89):
"The legal position of a state of reasonable doubt may be viewed and stated from two opposite angles. One may recognise, in a realistic fashion, that, although the law prescribes only the higher burden of the prosecution to prove its case beyond reasonable doubt and the accused's lower burden of proving his plea by a preponderance of probability only, yet, there is, in practice, a still lower burden of creating reason able doubt about the accused's guilt, and that an accused's can obtain an acquittal by satisfying this lower burden too in practice. The objection to stating the law in this fashion is that it looks like introducing a new type of burden of proof, although, it may be said, in defence of such a statement of the law, that it only recognises what is true. Alternatively, one may say that the right of the accused to obtain the benefit of a reasonable doubt is the necessary outcome and counterpart of the prosecution's undeniable duty to establish its case beyond reasonable doubt and that this right is available to the accused even if he fails to discharge his own duty to prove fully the exception pleaded. This technically more correct way of stating the law was indicated by Woolmington's case and adopted by the majority in Parbhoo's case, and, after that, by the Supreme Court. It seems to me that so long as the accused's legal duty to prove his plea fully as well as his equally clear legal right to obtain the benefit of reasonable doubt, upon a consideration of the whole evidence, on an ingredient of an offence, are recognised, a mere difference of mode in describing the position, from two different angles, is an immaterial matter of form only. Even if the latter form appears somewhat artificial, it must be preferred after its adoption by the Supreme Court". (See: K. M. Nanavati v. State of MaharashtraAIR 1962 SC 605).Page 30 of 47
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23. Thus, if the Court must start by assuming that no facts exist which could be taken into consideration for considering any plea as an exception to the criminal liability, which would otherwise be there, then how the Police can assume that the case is one falling within the exception to Section300 of the IPC.
24. Let me, for the time being, proceed on the footing that the case is one of culpable homicide amounting to murder. In such circumstances, the only clause that can be invoked, if at all applicable, would be Clause Fourthly to section 300. Section 300 reads as under;
"300. Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or 2ndly xxx xxx xxx xxx 3rdly xxx xxx xxx xxx 4thly. If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid."
25. Clause fourthly covers those class of cases which are very dangerous in themselves and the act is done with the knowledge that it must, in all probability, cause death or such bodily injury as is likely to cause death and despite such knowledge, the act is done without any excuse. In other words, the provisions of clause fourthly are required to be attracted only when the offender knows that his act is so imminently dangerous that it would, in all probability, cause death or, at least, such bodily injury, which is likely to cause death. Such knowledge on the part of the accused must be of highest degree of probability. It is also a well known fact that clause fourthly is designed to provide for that class of Page 31 of 47 HC-NIC Page 31 of 47 Created On Sat May 06 01:27:56 IST 2017 R/SCR.A/9248/2016 CAV JUDGMENT cases where the acts resulting in death are calculated to put lives of many persons in jeopardy without being aimed at any one in particular and perpetrated with full consciousness of the probable consequence, as can be seen from the illustration (d) of Section 300 of the IPC.
26. The word "imminently" implies a risk which is both threatening and near. The question whether an act is imminently dangerous depends upon the nature of the act and its evident risk to human a life. It must be an act in which death of human is certain or almost so, and it would cause surprise if the result was otherwise.
27. Sitting in a Division Bench, I had an occasion to consider Clause Fourthly of section 300 in the case of Lashuben Chemabhai Chaudhary vs. State of Gujarat, Criminal Appeal No.945 of 2007, decided on 3rd August, 2012. I may quote the relevant observations as under;
13. We have already discussed above that the action of the accused in pushing the deceased in the fire of a hearth was preceded by a quarrel between the deceased and the appellant. From the aforesaid evidence on record, it cannot be said that the appellant had the intention that such action on her part would cause the death or such bodily injury to the deceased, which was sufficient in the ordinary course of nature to cause the death of the deceased. Therefore, in our view, the case cannot be said to be covered under Clause Fourthly of Section 300 IPC, however, the case of the appellant is covered under Section 304, PartII IPC. Clause (4) to Section 300 reads as under : "300. Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or 2ndly xxx xxx xxx xxx 3rdly xxx xxx xxx xxx 4thly. If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as Page 32 of 47 HC-NIC Page 32 of 47 Created On Sat May 06 01:27:56 IST 2017 R/SCR.A/9248/2016 CAV JUDGMENT aforesaid."
This clause covers class of cases which are very dangerous in themselves and the act is done with the knowledge that it must in all probability cause death or such bodily injury as is likely to cause death and despite such knowledge, the act is done without any excuse. In other words, provisions of this clause are required to be attracted only when the offender knows that his act is so imminently dangerous that it would in all probability cause death or atleast such bodily injury which is likely to cause death. Such knowledge on the part of the accused must be of highest degree of probability. It is also a well known fact that the clause 4thly is designed to provide for that class of cases where the acts resulting in death are calculated to put lives dof many persons in jeopardy without being aimed at any one in particular and perpetrated with full consciousness of the probable consequence, as can be seen from illustration (d) of Section 300 of the IPC. Under clause (4) the degree of probability or likelihood of the act resulting in fatal harm is required to be of highest level. This can be gathered from the clear wording of the clause (4), namely, "If the person committing the act knows that it is so imminently dangerous that it must, in all probability cause death ......." For applicability of this clause following are the necessary requirements : (1) the act must be imminently dangerous;
(2) the act must be of extraordinary recklessness;
(3) the danger to human life must be so imminent; and (5) the imminence should be such that it will in all probability cause death or cause such bodily injury as is likely to cause death.
The word "imminently" implies a risk which is both threatening and near. The question whether an act is imminently dangerous depends upon nature of the act and its evident risk to human life. The danger threatened must be to human life. It must be an act in which death of human is certain or almost so, and it would cause surprise if the result was otherwise. Moreover, the danger must not only be of certain or almost certain death, but of a death which is near and may be counted by days or may be hours. Thus, it can be seen that unlike the preceding three clauses of Section 300 clause (4) revolves round the knowledge of the accused and intention of the accused is of no relevance to attract provisions of this clause.
28. The act on the part of the applicants in constituting an unlawful assembly and forcibly storming into the flat, thereby creating a panic or Page 33 of 47 HC-NIC Page 33 of 47 Created On Sat May 06 01:27:56 IST 2017 R/SCR.A/9248/2016 CAV JUDGMENT fear in the mind of the deceased and his friends, in my opinion, by any stretch of imagination, would not fall under Clause4 to Section300 so as to bring the act within the ambit of culpable homicide amounting to murder.
29. In my opinion, Section304 of the IPC has no application in the present case.
30. In the aforesaid context, I must look into the decision of the Supreme Court in the case of 'State of Madhya Pradesh Vs. Ram Prasad' reported in AIR 1968 SC 881. In the said case, the respondent Ram Prasad was tried in the Court of Sessions for the offence under Section 302 of the IPC. He was convicted by the learned Sessions Judge under Section324 of the IPC and sentenced to rigorours imprisonment for six months. The State Government then filed an appeal against his acquittal under Section302 of the IPC and also an application for revision for the enhancement of the sentence passed on him. The High Court convicted him under Section304 Part II of the IPC. The State Government thereafter filed an appeal in the Supreme Court contending that the conviction of the respondent Ram Prasad should have been under Section302 of the IPC. Ram Prasad was living with his mistress. They used to quarrel quite frequently. On the date of the incident, Ram Prasad intended to leave Mannaur for a place called Harsa, because his cattle used to be stolen at Mannaur. The mistress was unwilling to go with him. On the night of the incident, Ram Prasad put kerosene oil on the clothes of his mistress and set her ablaze. Few witnesses heard the mistress shouting that RamPrasad had put kerosene oil and had set her alight. The Supreme Court decided the appeal filed by the State addressing the question what offence Ram Prasad could be said to have committed. While allowing the appeal and substituting the conclusion Page 34 of 47 HC-NIC Page 34 of 47 Created On Sat May 06 01:27:56 IST 2017 R/SCR.A/9248/2016 CAV JUDGMENT under Section302 of the IPC in place of the conviction under Section 304(2) of the IPC, the Supreme Court observed as under : The question then arises, what was the offence which Ram Prasad can be said to have committed ? The offence of causing injury by burning is a broad spectrum which runs from s. 324 causing simple injury by burning through s. 326, namely, causing grievous injury by burning to the two major offences, namely, culpable homicide not amounting to murder and even murder itself. The Sessions Judge chose the lowest end of the spectrum which is surprising enough, because the burns were so extensive that they were certainly grievous by all account. The High Court placed the offence a little higher, namely, culpable homicide not amounting to murder. We think that the matter goes a little further than this. As death has been caused the question has to be considered in the light of homicide to determine whether the action of Ram Prasad Calls within culpable homicide not amounting to murder or the higher offence of murder itself. Here we see that death has actually been caused by the criminal act; in other words, there has been homicide and since it is not accidental or suicidal death, responsibility for the homicide, in the absence of any exceptions ;or extenuating circumstances, must be borne by the person who ,caused it. The High Court has apparently stopped short by holding that this was a case of culpable homicide not amounting to murder. The question is whether the offence falls in any of the clauses of s. 300 Indian Penal Code. In this connection it is difficult to say that Ram Prasad intended causing the death of Mst. Rajji although it might well be the truth. That he set fire to her clothes after pouring kerosene oil is a patent fact and therefore the matter has to be viewed not only with regard to the firstly of s. 300, but all the other clauses also. We do not wish to consider the second and the third clauses, because the question then would arise what was the extent of the injury which Ram Prasad intended to cause or knew would be caused to Mst. Rajji. That would be a matter of speculation. In our opinion, this matter can 'be disposed of with reference to clause fourthly ,of s. 300. That clause reads as follows : ....... culpable homicide is murder..... if the person committing the act knows that it is so imminently dangerous that it must in all probability, cause death or such bodily injury as is likely to cause death, and commits'such act without any excuse for incurring the risk or causing death or such injury as aforesaid."
It is obvious that there was no excuse for Ram Prasad to have taken the risk of causing the death or such bodily injury as was likely to cause death. The question therefore arises whether Ram Prasad knew that his act was so imminently dangerous that it must in all Page 35 of 47 HC-NIC Page 35 of 47 Created On Sat May 06 01:27:56 IST 2017 R/SCR.A/9248/2016 CAV JUDGMENT probability cause death or such bodily injury as is likely to cause death, so as to bring the matter within the clause. Although clause fourthly is usually invoked in those cases where there is no intention to cause the death of any particular person (as the illustration shows) the clause may on its terms be used in those cases where there is such callousness towards the result and the risk taken is such that it may be stated that the person knows that the act is likely to cause death or such bodily injury as is likely to cause death. In the present case, Ram Prasad poured kerosene upon the clothes of Mst. Rajji and set fire to those clothes. It is obvious that such fire spreads rapidly and burns extensively. No special knowledge is needed to know that one may cause death by burning if he sets fire to the clothes of a person. Therefore, it is obvious that Ram Prasad must have known that he was running the risk of causing the death of Rajji or such bodily injury as was likely to cause her death. As he had no excuse for incurring that risk, the offence must be taken to fall within 4thly of S. 300, Indian Penal Code. In other words, his offence was culpable homicide amounting to murder even if he did not intend causing the death of Mst. Rajji. He committed an act so imminently dangerous that it was in all probability likely to cause death or to result in an injury that was likely to cause death. We are accordingly of the opinion that the High Court and the Sessions Judge were both wrong in holding that the offence did not fall within murder.
31. The Supreme Court held that the act of Ram Prasad was such that he knew that he was running the risk of causing of the death of the victim or such bodily injury as was likely to cause her death. As he had no excuse for incurring that risk, the offence must be taken to fall within fourthly of Section300 of the IPC. In other words, according to the Supreme Court, the offence of Ram Prasad was culpable homicide amounting to murder, even if he did not intend causing the death because he committed an act so imminently dangerous that he was in all probability likely to cause death or to result injury that was likely to cause death. So far as the case on hand is concerned, the act alleged, was not of the nature, by which, even an inference could be drawn that the applicants knew that they were running the risk of causing the death of Kapil or such bodily injury as was likely to cause the death of Kapil. Probably, none of the applicants had even the slightest idea that Kapil Page 36 of 47 HC-NIC Page 36 of 47 Created On Sat May 06 01:27:56 IST 2017 R/SCR.A/9248/2016 CAV JUDGMENT was hiding himself outside the balcony. It was a volunatary act on the part of the deceased. He incurred the risk for the purpose of escaping by jumping from the balcony to the other building bank opposite. But in the process, fell down and hurt himself grievously.
32. The above takes me to consider whether the chargesheet could have been filed for the offence under Section395 of the IPC. Section 390 of the IPC explains what is robbery. Section390 of the IPC reads as under:
390. Robbery.In all robbery there is either theft or extortion. When theft is robbery.
When theft is robbery.Theft is "robbery" if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint.
When extortion is robbery.
When extortion is robbery.Extortion is "robbery" if the offender, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in fear, induces the person, so put in fear then and there to deliver up the thing extorted.
Explanation.The offender is said to be present if he is sufficiently near to put the other person in fear of instant death, of instant hurt, or of instant wrongful restraint.
Illustrations
(a) A holds Z down, and fraudulently takes Z's money and jewels from Z's clothes, without Z's consent. Here A has committed theft, and, in order to the committing of that theft, has voluntarily caused wrongful restraint to Z. A has therefore committed robbery.
(b) A meets Z on the high road, shows a pistol, and demands Z's purse. Z, in consequence, surrenders his purse. Here A has extorted the purse from Z by putting him in fear of instant hurt, and being at the time of committing the extortion in his presence. A has therefore committed robbery.
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(c) A meets Z and Z's child on the high road. A takes the child, and threatens (ci) to filing it down a precipice, unless Z delivers his purse. Z, in consequence, delivers his purse. Here A has extorted the purse from Z, by causing Z to be in fear of instant hurt to the child who is there present. A has therefore committed robbery on Z.
(d) A obtains property from Z by saying"Your child is in the hands of my gang, and will be put to death unless you send us ten thousand rupees". This is extortion, and punishable as such: but it is not robbery, unless Z is put in fear of the instant death of his child.
33. Section391 is with regard to the Dacoity. Section391 of the IPC reads as under:
391. Dacoity.When five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, and persons present and aiding such commission or attempt, amount to five or more, every person so committing, attempting or aiding, is said to commit "dacoity".
34. Theft amounts to `robbery', if in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint. Before theft can amount to `robbery', the offender must have voluntarily caused or attempted to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint. The second necessary ingredient is that this must be in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft. The third necessary ingredient is that the offender must voluntarily cause or attempt to cause to any person hurt etc. for that end, that is, in order to the committing of the theft or for the purpose of committing theft or for carrying away or attempting to carry Page 38 of 47 HC-NIC Page 38 of 47 Created On Sat May 06 01:27:56 IST 2017 R/SCR.A/9248/2016 CAV JUDGMENT away property obtained by the theft. It is not sufficient that in the transaction of committing theft hurt etc., had been caused. If hurt etc. is caused at the time of the commission of the theft but for an object other than the one referred to in sec. 390, I. P. Code, theft would not amount to robbery. It is also not sufficient that hurt had been caused in the course of the same transaction as commission of the theft. The three ingredients mentioned in sec. 390, I. P. Code, must always be satisfied before theft can amount to robbery and this has been explained in Bishambhar Nath v. Emperor A. I. R. 1941 Oudh 476, in the following words:
"The words `for that end' in sec. 390 clearly mean that the hurt caused by the offender must be with the express object of facilitating the committing of the theft or must be caused while the offender is committing the theft or is carrying away or is attempting to carry away the property obtained by theft. It does not mean that the assault or the hurt must be caused in the same transaction or in the same circumstances."
[See : Himmatsing Shivsing Vs. The State of Gujarat; 1961 (Vol. II) GLR 678]
35. In the case of Karuppa Gounden v. Emperor A. I. R. 1918 Madras 321, which followed two Calcutta cases of Otaruddi Manjhi v. Kafiluddi Manjhi 5 C. W. N. 372 and King Emperor v. Mathura Thakur 6 C. W. N. 72, it has been observed at page 824 as follows :
"Now it is our duty to give effect to the words `for that end'. It would have been open to the legislature to have used other words which would not raise the difficulty that arises here. The public Prosecutor has been forced to argue that `for that end' must be read as meaning `in those circumstances'. In my opinion we cannot do that in construing a section in the Penal Code. Undoubtedly words `in those circumstances' would widen the application of the section and we are not permitted to do that. The matter has been considered in two judgments of the Calcutta High Court one of which is reported as Otaruddi Manjhi v. Kafiluddi Manjhi 5 C.W..N. 372. Their Lordships put the question in this way: ;
"It seems to us that the whole question turns upon the words 'for Page 39 of 47 HC-NIC Page 39 of 47 Created On Sat May 06 01:27:56 IST 2017 R/SCR.A/9248/2016 CAV JUDGMENT that end'. Was any hurt or fear of instant hurt, that was caused in the present case, cause for the end of 'the commission of the theft? We think not. It seems to us that whatever violence was used was used for the purpose of dispossessing the persons who were already in possession of the premises in question and had no relation to the commission of theft, although theft was committed at the same time."
The language used in another case reported as King Emperor v. Mathura Thakur 6 C. W. N. 72 is as follows:
"The question here arises whether Mathura Thakur when he attacked Soman Dhania, did so for the end referred to, namely, for the purpose of carrying away the paddy, which had been harvested."
Those judgments in my opinion state the obvious intention of the Section and we are bound no give effect t0 it and I therefore follow the decisions in those two cases.
Ordinarily, if violence or hurt etc. is caused al the time of theft, it would be reasonable to infer hat violence or hurt was caused for facilitating the commission of theft or for facilitating the carrying away of the property stolen or for facilitating the attempt to do so. But, there may be something in evidence to show that hurt or violence was caused not for this purpose but for a different purpose.
[See : Himmatsing Shivsing Vs. The State of Gujarat; 1961 (Vol. II) GLR 678]
36. By any stretch of imagination, it cannot be said that the common object of the unlawful assembly was to commit dacoity. The act of taking away mobiles lying in the flat would not constitute dacoity.
37. At this stage, let me look into the impugned order passed by the trial Court rejecting the discharge application. While rejecting the discharge application, the trial Court observed as under: The record of the present case reveals that the accused no.2 on mobile phone inquired from the complainant herein that why did you harass and tease the witness no.14 (Sweety), being fumed and furious the accused no.1 to 7 came to scene of offence arming themselves with deadly weapons and created an environment of great fear by hurling Page 40 of 47 HC-NIC Page 40 of 47 Created On Sat May 06 01:27:56 IST 2017 R/SCR.A/9248/2016 CAV JUDGMENT abuses and challenging the complainant and other. The alleged matter id not stop there but went to the extent of breaking the main door of the house, in which the victim and witnesses closed themselves in various other rooms fearing their furiousness and to save themselves from the outcome of the anger of the accused herein. The deceased who had closed himself in the balcony due to fear of his being killed. The accused approached at that door leading to balcony and tried to break the door as well. Since the accused herein were trying to break the door and their furious conduct gave terrific signal of causing the death of the victim, just with a view to save himself from said violent fury and being killed, he jumped from said balcony to escape from being killed from the accused herein resulting into his falling down on the ground being caused the injuries to which he succumbed late on. In the meanwhile, the accused herein took away three mobile phones belonging to complainant and the witnesses being worth of Rs.3,000/ by committing the robbery and decamped with said articles and destroyed the same later on and by locking remaining witnesses in the said premises.
The main witness to the present incident is none other than the witness by name Rahulbhai Bharatbhai Thakkar herein who himself is the victim of violent aggression of the accused/applicants herein. His version goes that the applicants/accused herein have descended at the place of incident arming themselves with deadly weapons caused all the victims including the deceased huddled themselves into different rooms of the house and closed the doors of front room and other rooms from inside. That did not deter the accused/applicant herein who had broken open the door of the main room of said house, entered therein and started breaking the things in the said room. The applicants/accused herein did not stop there, but went further and trying to breakup the doors of the rooms wherein these victims including the deceased being closed himself to protect from the aggression of the accused/applicants herein. Carrying deadly weapons coupled with violent aggression shirk and sought to kill them instilled the fear in the mind of the deceased led him to jump from the balcony of one house to another which caused his fall resulting into the death of the deceased.
The second part of the statement clearly specifies the accused/applicants herein have decamped with the mobile phones belonging to complainant and other two witnesses.
These factual aspects get fortification from the complaint and other witnesses like Aneesh, Urvish, Bhumin, who were very much present over there while actual alleged offense took place.
Act and its doer: Page 41 of 47 HC-NIC Page 41 of 47 Created On Sat May 06 01:27:56 IST 2017 R/SCR.A/9248/2016 CAV JUDGMENT These two aspects in the form of act narrated in clause (a) (b) and (c) lays bare the factual matrix which at lease on a standard of proof that is expected at the stage of framing of charge as envisaged in Section 228 of Code of Criminal Procedure. The further analysis of the said factual matrix, of course, primafacie puts forward sufficient material to assign doership to the accused herein and acts that have been committed in the form of violent aggressive assault leading to happening of the death of the deceased. Violent aggressive assault coupled with shirk and shout to kill reflects the state of mind of the accused. The work "act" contemplates in its sweep anything and everything which results into some consequences violent aggressive assault on the part of the accused/applicants herein very well falls within then precinct of the word "act" which is employed in first part of the definition of culpable homicide which is defined in Section 299 of Indian Penal Code. This word "act" embodies and is impregnate with very wide meaning which includes in its sweep the act which may be termed as cause of the effect. In this factual matrix, the cause is the violent aggressive assault on the deceased and other witnesses and its effect is the death of the deceased. The act does not stand alone but reflects the mantle state of the applicants/accused herein who have expressed the same through words which are followed by the action in the form of carrying the weapons, violent behavior in the form of breaking open the main door of the house and trying to break the door of the balcony in which the deceased being present at the relevant time. This act on the part of the accused/applicants herein have caused terrific alarm in the mind of the deceased as he felt between deep sea on one hand and devil on the other. The action on the part of accused herein had compelled the deceased to jump from balcony so as to save himself from being killed at the hands of the applicants/accused herein. Thus, the death of the deceased herein at this primafacie stage, appears to be the consequences of the act on the part of the accused/applicants herein viz. violent aggressive assault holding deadly and dangerous weapons like hockey sticks etc. and breaking open the door and tried to break open the door leading to balcony where the deceased closed himself from protection of the aggression on the part of the accused/applicants herein. Action, its doership, mental status of in the form of intention and outcome which are expected of in Section 34 of Indian Penal Code are very much in existence in the material available in the form of chargesheet which bring to fore the existence of the ground for proceeding for framing of charge in the background of existence of ingredients of Section 34 of Indian Penal Code as follows;
Essential Ingredients: An offence under this Section provides punishment to culpable homicide not amounting to murder; Culpable homicide not amounting to murder has been made punishable in the following cases;
Page 42 of 47HC-NIC Page 42 of 47 Created On Sat May 06 01:27:56 IST 2017 R/SCR.A/9248/2016 CAV JUDGMENT (1) If the act by which death is caused is done with intention of causing death or such bodily injury as is likely to cause death, the punishment is imprisonment for life, or imprisonment of either description for a term which may extend to ten years and fine.
(2) If the act is done with knowledge that it is likely to cause death but without any intention to cause death or such bodily injury as is likely to cause death, the punishment is imprisonment of either description for a term which may extend to ten years, or with fine, or with both.
In this regard, very high emphasis laid by the Learned Advocate for the accused/ applicants herein on the decision of Hon'ble High Court of Gujarat in Criminal Misc. Application bearing No.15385 of 2011 while dealing with the anticipatory bail application in respect of non applicability of Section 304 of Indian Penal Code and presence of the accused/applicants herein. These observations were made at preliminary stage and consequently, the order of Hon'ble High Court of Gujarat mandates as follows in para 13 of said order;
"At the trial, the Trial Court shall not be influenced by the observation of preliminary, nature, qua the evidence at this stage, made by this Court while enlarging the applicants on bail. Rule made absolute."
After passing the said order, the chargesheet has been laid after concluding the investigation opining that there is sufficient material to support the charges levelled therein. Consequently, as per the mandate of Hon'ble High Court of Gujarat, it does not help the applicants/ accused herein at this stage.
Similarly, consideration of entire material available on the record and proceedings of the present case, very well brought on record the material pointingout that the accused/applicants herein have been decamped with the mobiles of the complainant and witnesses herein. The further material suggests that same has not been recovered on account of same being destroyed by the accused/applicants herein. The accused/applicants cannot take benefit of their own wrong saying no recovery or discovery having been effected. This fact coupled with other factual matrix on record clearly support at least at this stage, existence of the following essential ingredients of Section395 of Indian Penal Code which go as follows;
(a) that a dacoity as defined in 391 was committed; and
(b) that it was committed by the accused persons;
The evidence available at this stage, makes it clear that five or more persons were present at the time of incident, by expressing violent Page 43 of 47 HC-NIC Page 43 of 47 Created On Sat May 06 01:27:56 IST 2017 R/SCR.A/9248/2016 CAV JUDGMENT aggressive assault put all the victims in the terrific fear or instant death of hurt or of wrongful restrained and decamped with the mobile phones in question. This entire evidence very much indicates about existence of the all the ingredients and positive opinion of the Investigating Officer in the chargesheet indicates the mobile phones which were looted or decamped with were completely destroyed. This is how the positive evidence of discovery of said mobile phones were rendered unavailable for recovery. In this particular factual aspect, the ratio laid down by Hon'ble High Court of Gujarat in Amrish Devnarayan Rajput (Supra) does not help the accused herein, which goes as follows;
"Where various charges including charge under S.397 of Penal Code were framed against accused on mere allegation that due to anger against some media persons a mob of 40 persons acted violantly and snatched as video camera and gold chain was also snatched by one of the accused, that by itself would not be sufficient to infer, in absence of any positive evidence, that the group of persons had ever intended robbery or attempted roberry, and it was held that accused was entitled to be discharged from charge under S.397 Penal Code. It was more so when no property was recovered from any of the accused or at the instance of the accused and Gold chain allegedly snatched by one of the accused when emerged to be an act of a wrong done by an individual, prima facie, it cannot be equated with conjoint criminal wrong done by a group of five or more persons."
Weighing of the material on record emerging from the chargesheet including the statements of the witnesses atleast creates and discloses great and grave suspicion against the applicants/ accused herein which need explaining, but no such explaining has been done on the record. From every corner available material in the form of evidence and its weighing and shifting bring to the fore the existence of the grounds which need framing of charge under Section 304 and 395 of IPC. The degree of proof that requires stems from the phrase "sufficient" ground for proceeding against the accused." This indicates that the court has to just infer as to whether the sufficient ground exist for proceeding against the accused. As observed in the preceding part of the present order, there appears to be in existence sufficient ground for proceeding against the applicants/accused herein.
This raises the question about the precinct in which the court ought to operate; Does the court have at this stage liberty to weigh and shift the evidence?
What should be the degree of proof for either discharge or proceeding further against the accused by way of framing charge?
Page 44 of 47HC-NIC Page 44 of 47 Created On Sat May 06 01:27:56 IST 2017 R/SCR.A/9248/2016 CAV JUDGMENT These questions have squarely been replied in the decision of Hon'ble Apex Court in Union of India Vs. Prafulla Kumar Samal and Another, AIR 1979 SC 366, wherein it has been held as under;
"10. Thus, on a consideration of the authorities mentioned above, the following principles emerge:
(1) That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to shift and weigh the evidence for the limited purpose of finding out whether or not a primafacie case against the accused has been made out;
(2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial.
(3) The test of determine a primafacie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.
(4) That in exercising his jurisdiction under Section 227 of the Code the Judge, which under the present Code is a senior and experienced Court cannot act merely as a PostOffice or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving inquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial."
Since the court comes to the corner where its being posed with the question does primafacie case involve all ingredients of the offences including mensrea which operates on a mental plane?
These facts really holdout the existence of the grounds requiring framing of the charge and not discharging the applicants/accused herein.
The material thus bears out that all the material ingredients, which are required to be in existence are primafacie there. These provide the ground for framing the charge under Sections304 and 395 against the accused/ applicants herein.
Page 45 of 47HC-NIC Page 45 of 47 Created On Sat May 06 01:27:56 IST 2017 R/SCR.A/9248/2016 CAV JUDGMENT (D) Summary as regards the conclusion: Primafacie availability of the ingredients Section 304 and 395 viz. (1) If the act by which death is caused is done with intention of causing death or such bodily injury as is likely to cause death, the punishment is imprisonment for life, or imprisonment of either description for a term which may extend to ten years and fine; (2) If the act is done with knowledge that it is likely to cause death but without any intention to cause death or such bodily injury as is likely to cause death, the punishment is imprisonment of either description for a term which may extend to ten years, or with fine, or with both and (a) that a dacoity as defined in 391 was committed; and (b) that it was committed by the accused persons.
In this backdrop, the ratio laid down in the Sajjan Kumar (supra) and Amrish Devenarayan Rajput (supra) do not help in the materials, set of facts and circumstances of the present case and consequently, do not help in advancing the cause of the accused/ applicants herein.
The emergence of, of course, primafacie all the essential elements or ingredients from the material available on record repeals the arguments of Learned Advocate and denies the prayer of discharge of the applicants/ accused herein as asked for in the present application.
38. I am afraid the trial Court failed to address itself on the core issues.
39. In the result, this application is allowed. The impugned order passed by the trial Court below Exh.6 in the Sessions Case No.153 of 2006 is hereby quashed and set aside. The application Exh.6 filed by the applicants is hereby allowed. The applicants are discharged from the offence punishable under Sections304 and Section395 of the IPC. The trial Court shall now apply its mind and frame an appropriate charge keeping in mind the materials on record. If the materials on record attracts any other offence not stated in the chargesheet, then the trial Court shall look into the same and frame an appropriate charge.
40. With the above, this application is disposed of. Direct service is Page 46 of 47 HC-NIC Page 46 of 47 Created On Sat May 06 01:27:56 IST 2017 R/SCR.A/9248/2016 CAV JUDGMENT permitted.
(J.B.PARDIWALA, J.) aruna Page 47 of 47 HC-NIC Page 47 of 47 Created On Sat May 06 01:27:56 IST 2017